Summary: A lawyer representing an automobile insurance company on a subrogated claim may ethically notify the debtor prior to commencing litigation against him stating that the lawyer intends to bring litigation and that if a judgment is obtained and remains unpaid the lawyer will petition the Registry of Motor Vehicles to suspend the license and registration of the debtor.
Facts: A lawyer states that: automobile insurance companies refer cases to him for litigation where they have not been able to secure payment of a claim for collision damage which they have paid and now seek to collect through subrogation. He asks if he may properly send a letter, prior to commencing litigation, stating that he intends to bring litigation against the debtor and that if a judgment is obtained and claims remain unpaid, he will petition the Registry of Motor Vehicles in accordance with G.L. c.90, S22A, to suspend the license and registration of the debtor. In the committee's view such a communication would not be improper.
Discussion: Disciplinary Rule 7-105(A) provides that "[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." The question is, therefore, if calling the putative defendant's attention to the possibility of suspension of license and registration is a threat "to present criminal charges solely to obtain an advantage in a civil matter." The process by which the licenses or registrations of judgment debtors are suspended is not criminal. Indeed, it is recognized that the process is a club the legislature intentionally has given to creditors. See McQuarrie v. McLaughlin, 294 F.Supp. 176 (D. Mass. 1968), aff'd 394 U.S. 456; Ross v. Gunaris 395 F.Supp. 623 (D. Mass. 1975).
Neither does the committee think that the proposed communication would offend Disciplinary Rule 7-102(A), which provides:
In his representation of a client, a lawyer shall not:
(1) [f]ile suit, assert a position, conduct a defense, delay a trial,
or take other action on behalf of his client when he knows or
when it is obvious that such action would serve merely to
harass or maliciously injure another.
Assuming that the purpose of calling the attention of supposed debtors to the statute is to encourage them to pay their obligations and not "merely to harass or maliciously injure" them, we believe that there would be no violation.
Permission to publish granted by the Board of Delegates on January 19, 1983. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.